Delhi District Court
M/S Shree Naurang Godavari ... vs State on 29 May, 2024
M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr.
M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
IN THE COURT OF SH. ALOK SHUKLA, ADDITIONAL
SESSION JUDGE-02, SPECIAL JUDGE (NDPS), EAST
DISTRICT, KARKARDOOMA COURT, DELHI
CNR no. DLET01-005525-2019, CNR no. DLET01-005526-
2019, CNR no. DLET01-005527-2019, CNR no. DLET01-
005528-2019, CNR no. DLET01-005529-2019, CNR no.
DLET01-005530-2019 & CNR no. DLET01-005531-2019
CRIMINAL REVISION NO.:- 138/2019, 139/2019, 140/2019,
141/2019, 142/2019, 143/2019 & 144/2019
IN THE MATTER OF :-
1. M/S. SHREE NAURANG GODAVARI
ENTERTAINMENT LTD.
SH. RAJPAL NAURANG YADAV
Registered Office:-
B-53, 209, Government Housing Scheme,
Siddarth Nagar, Phase-II, Near Prabodhan-
Theatre, Goregaon, (West), Mumbai 400104.
2. SH. RAJPAL NAURANG YADAV
DIRECTOR OF M/S. SHREE NAURANG GODAVARI
ENTERTAINMENT LTD.
S/o. Sh. Naurang Munshi Lal Yadav,
R/o. Flat no. 801, 'B' Wing, Amogh-
Vasundhara, Co-operative Housing Society,
Opposite 'Chroma', Juhu Ville Parle,
Mumbai-400049.
3. MRS. RADHA RAJPAL YADAV
DIRECTOR OF M/S. SHREE NAURANG GODAVARI
ENTERTAINMENT LTD.
W/o. Sh. Ralpal Naurang Yadav,
R/o. Flat no. 801, 'B' Wing, Amogh-
Vasundhara, Co-operative Housing Society,
Opposite 'Chroma', Juhu Ville Parle,
Mumbai-400049 ...Petitioners
VERSUS
1. THE STATE
2. M/S. MURLI PROJECTS PVT. LTD.
Page No. 1 of 24
M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr.
M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
Having office at:-
304, Roots Tower, Laxmi Nagar,
District Center, Delhi 110092 ...Respondents
AND
CNR no. DLET01-007163-2019, CNR no. DLET01-007164-
2019, CNR no. DLET01-007166-2019, CNR no. DLET01-
007167-2019, CNR no. DLET01-007168-2019, CNR no.
DLET01-007169-2019 & CNR no. DLET01-007170-2019
CRIMINAL REVISION NO.:- 180/2019, 181/2019, 182/2019,
183/2019, 184/2019, 185/2019 & 186/2019
IN THE MATTER OF :-
M/S. MURLI PROJECTS PVT. LTD.
Having office at:-
304, Roots Tower, Laxmi Nagar,
District Center, Delhi 110092 ...Revisionist
VERSUS
1. M/S. SHREE NAURANG GODAVARI
ENTERTAINMENT LTD.
Having its Registered Office at:-
B-53, 209, Government Housing Scheme,
Siddarth Nagar, Phase-II, Near Prabodhan-
Theatre, Goregaon, (West), Mumbai 400104
Maharashtra
2. SH. RAJPAL NAURANG YADAV
S/o. Sh. Naurang Munshi Lal Yadav,
DIRECTOR M/S. SHREE NAURANG GODAVARI
ENTERTAINMENT LTD.
B-53, 209, Government Housing Scheme,
Siddarth Nagar, Phase-II, Near Prabodhan-
Theatre, Goregaon, (West), Mumbai 400104
Maharashtra
ALSO AT
Flat no. 801, 'B' Wing, Amogh-
Vasundhara, Co-operative Housing Society,
Opposite 'Chroma', Juhu Ville Parle,
Page No. 2 of 24
M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr.
M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
Mumbai-400049.
3. MRS. RADHA RAJPAL YADAV
W/o. Sh. Ralpal Naurang Yadav,
MANAGING DIRECTOR M/S. SHREE NAURANG
GODAVARI ENTERTAINMENT LTD.
B-53, 209, Government Housing Scheme,
Siddarth Nagar, Phase-II, Near Prabodhan-
Theatre, Goregaon, (West), Mumbai 400104
Maharashtra
ALSO AT
Flat no. 801, 'B' Wing, Amogh-
Vasundhara, Co-operative Housing Society,
Opposite 'Chroma', Juhu Ville Parle,
Mumbai-400049 ...Respondents
Date of Institution : 05.07.2019
Date of reserve for judgment : 03.05.2024
Date of decision : 29.05.2024
::- J U D G M E N T -::
1. Vide this common judgment, I shall decide fourteen
criminal revisions.
Cr. Rev Nos. 138/2019, 139/2019, 140/2019, 141/2019,
142/2019, 143/2019, 144/2019
2. The first set of seven criminal revisions petitions bearing
Cr. Rev Nos. 138/2019, 139/2019, 140/2019, 141/2019,
142/2019, 143/2019, 144/2019 have been preferred by the
accused persons/Revisionists against respective orders on
sentence all dated 22.05.2019, passed by trial court in seven
separate complaint cases all titled as M/s. Murli Projects Pvt. Ltd.
v. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.,
bearing CC Nos.823/13(New No. 53711/16), 825/13(New
No.53694/16), 831/13(New No.53822/16), 832/13(New
Page No. 3 of 24
M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr.
M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
No.53827), 02/13 (New No.48785/16), 824/13(New
No.53693/16) & 03/2013 (New No.50553/16) all under Section
138 Negotiable Instruments Act (hereinafter referred to as the
Act), PS Preet Vihar. Vide impugned orders on sentence dated
23.04.2018, trial court sentenced Revisionist no.2/Sh. Rajpal
Navrang Yadav to undergo simple imprisonment for a period of
three months and to pay a fine of Rs.1.35 crore in each complaint
case and in default of payment of fine, he was to suffer simple
imprisonment for a further period of six months. Revisionist
no.3/Mrs. Radha Rajpal Yadav was sentenced to pay fine of
Rs.10 lac to the complainant in each complaint case and in
default of payment of fine, she was to suffer simple
imprisonment for a period of three months. Revisionists have
preferred the Revision petitions for setting aside the orders dated
22.05.2019 to the effect of awarding sentence and in default
sentence to the Revisionist No.2.
BRIEF FACTS OF THIS CASE :-
3. Briefly stated, the relevant facts giving rise to these revisions are that Respondent M/s. Murli Projects Pvt. (having its registered office at 304, Roots Tower, Laxmi Nagar, District Centre, Delhi-110092), filed seven complaint cases against M/s. Shri Naurang Godavari Entertainment Pvt. Ltd and its directors namely Sh. Rajpal Navrang Yadav and Smt. Radha Rajpal Yadav, for offence under Section 138 NI Act. These separate seven complaint cases pertained to dishonour of cheques in question arising out of a common transaction. In discharge of their liability, seven different cheques were alleged to be issued on behalf of M/s. Shree Naurang Godavari Entertainment Ltd. in Page No. 4 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. favour of M/s. Murli Projects Pvt. Ltd., pertaining to seven different complaint cases, which are as follows :-
4. In all seven complaint cases, Sh. Rajiv Sharma led pre- summoning evidence, thereafter, accused persons were summoned vide orders dated 21.03.2013 in CC Nos.02/13 and 03/13, dated 20.04.2013 in CC Nos.823/13, 824/13 and 825/13 and dated 01.05.2013 in CC Nos.831/13 and 832/13. Thereafter, on 18.12.2013 trial court framed notice under Section 251 Cr.P.C against accused persons in all seven cases, to which they pleaded not guilty and claimed trial. Sh. Rajiv Sharma was examined as CW1 and Sh. Madho Gopal Agarwal was examined as CW2. Thereafter, on 07.01.2017 statement of Sh. Raj Pal Navrang Yadav was recorded under Section 281 Cr.P.C and also on the part of accused company being AR. On same day, statement of Smt. Radha Raj Pal Yadav was also recorded under Section 281 Cr.P.C. Sh. Raj Pal Yadav examined himself as DW1 on 11.04.2017, in his defence evidence.
5. Final arguments were heard and trial was concluded by convicting accused no.1 company i.e. M/s. Shree Naurang Godavari Entertainment Ltd., accused no.2/Sh. Rajpal Navrang Page No. 5 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Yadav and accused no.3/Mrs. Radha Rajpal Yadav, vide judgments of conviction dated 13.04.2018 and orders on sentence were passed against convicts vide orders dated 23.04.2018, in all seven complaint cases. Vide judgments of conviction dated 13.04.2018, trial court convicted accused no.1 company i.e. M/s. Shree Naurang Godavari Entertainment Ltd., accused no.2/Sh. Rajpal Navrang Yadav and accused no.3/Mrs. Radha Rajpal Yadav for offence punishable under Section 138 NI Act, in each complaint case. Vide orders on sentence dated 23.04.2018, trial court sentenced convict no.2/Sh. Rajpal Navrang Yadav to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1.6 crore in each complaint case and in default of payment of fine, he was to suffer simple imprisonment for a period of six months. Out of fine of Rs.1.6 crore, Rs.1,59,50,000/- was to be paid to the complainant and remaining amount of fine of Rs.50,000/- was to be paid to the State, in each complaint case. Vide same orders on sentence dated 23.04.2018, trial court also sentenced convict no.3/Mrs. Radha Rajpal Yadav to pay fine of Rs.10 lac to the complainant in each complaint case and in default of payment of fine, she was to suffer simple imprisonment for a period of three months.
6. Being aggrieved by the judgments of conviction dated 13.04.2018 and orders on sentence dated 23.04.2018, the Revisionists preferred seven appeals, wherein the Ld. Appellate Court vide its order dated 21.01.2019 upheld the order of conviction dated 13.04.2018 and set-aside the order of sentence dated 23.04.2018 with the following directions for passing appropriate order afresh on the point of sentence.
(i) Not to enhance the period of sentence and the fine.Page No. 6 of 24
M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
(ii) To award or pass order for imposing sentence upon petitioner no.1 the company.
(iii)The payments made to the complainant regarding same liability till date to be taken into account, while imposing fine against the convicts..
7. That the matter was reheard by the Ld. Trial Court and the fresh order of sentence was passed by the Ld. Trial Court vide impugned orders dated 22.05.2019, whereby the Ld. Trial Court admonished the Revisionist No.1 in all the cases as adequate compensation had already been awarded to the complainant to be paid by the Revisionist No.2 and 3 and the Revisionist no.1, company has already been struck off from the Roster of ROC. Ld. Trial Court reduced the sentence imposed upon Revisionist no.2 i.e. Sh. Rajpal Naurang Yadav and sentenced him in each case to undergo simple imprisonment of three months and to pay a fine of Rs. 1.35 Crore and in default of payment of fine to suffer simple for a further period of six months (sentences in all the seven cases were ordered to run concurrently). Ld. Trial Court maintained the order on sentence passed against the Revisionist no.3 i.e. Radha Rajpal Yadav and directed her in each case to pay a fine of Rs. 10 lacs to the complainant and in default of payment of fine to suffer simple imprisonment for a period of three months (sentences in all the seven cases were ordered to run concurrently).
GROUNDS TAKEN IN SEVEN CRIMINAL REVISIONS :-
8. Being aggrieved by the impugned orders on sentence, Revisionists have preferred seven Revision petitions on the following grounds:
i.That the Ld. Trial Court has partly erred in ignoring the fact that the Ld. Appellant Court vide order dated Page No. 7 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
21.01.2019 to not to enhance the sentence but while awarding default sentence to petitioner no.2, the Ld. Trial Court has enhanced the in-default sentence period from 3 months to 6 months, which is nothing but violation of directions given by Ld. ASJ.
ii.That the Ld. Trial Court has partly erred in ignoring the fact that the petitioner no.2 had already suffered 3 months imprisonment in default of payment of Rs.10.6 Crore in execution proceedings pending before Hon'ble High Court of Delhi and as such the petitioner no.2 cannot be subjected to undergo the sentence of 3 months or in default sentence of 6 months for the same quantum of amount, which was also the subject matter before Ld. Trial Court. This is nothing but double jeopardy. iii.That the Ld. Trial Court has grossly erred in ignoring the fact that the Ld. ASJ was pleased to dismiss all the revision petitions filed by the respondent no.2 (complainant) for enhancement of sentence and fine and as such the order of the Ld. Trial Court qua enhancing the default sentence is apparently bad in the eyes of law. iv.That the Ld. Trial Court has grossly erred in not passing any order on adjustment of amount of Rs.1,91,40,350/- towards fine awarded to the petitioner no.2 & 3, as directed by Ld. ASJ vide order dated 21.01.2019. v.As a matter of fact, at the time of rehearing of arguments, a prayer was made before Ld. Trial Court to adjust Rs.70 Lacs out of Rs.1,91,40,350/- against fine imposed on petitioner no.3 and remaining amount of Rs.1,21,40,350/- towards fine imposed on petitioner no.2. But the Page No. 8 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
impugned order dated 22.05.2019 is absolutely silent about any such adjustment and once again it amounts to violation of directions given by Ld. ASJ.
vi.That the Ld. Trial Court has also grossly erred in dismissing the application of petitioner no.2 & 3 vide order dated 06.06.2019, regarding passing appropriate order qua adjustment of Rs. 1,91,40,350/- against the fine amount.
vii.That though Sec. 428 Cr.P.C. is not applicable in the present case, but in the larger interest of justice the Ld. Trial Court should not have pass further order on sentence of 3 months for offence U/s 138 N.I. Act in default sentence of 3 months in case of non-payment of fine amount.
viii.That the impugned order on sentence dated 22.05.2019 is partly liable to be set aside to the effect of awarding sentence and in default sentence to the petitioner no.2.
9. During the pendency of the present revision petitions, the Revisionists approached the Hon'ble High Court in W.P. (Crl.) 360 of 2022, which was dismissed as withdrawn vide order dated 16.02.2024 with the following observations:
2. After addressing arguments, learned counsel for the petitioner seeks permission to withdraw the instant petition with liberty to raise all his contentions before the trial court including the contention that imposing a fine/non-payment of the amount in the proceedings under the negotiable instruments act would result in double Jeopardy for the petitioner in as much as the decree has already been executed.
3. Liberty, as prayed for, is granted.
4. Be it noted that this Court has not made any observations on the merits of the case. The trial court is requested to consider the arguments/contentions of the Page No. 9 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr.
M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
petitioner on its own merits before finally adjudicating the matter.
10. It has been argued on behalf of the Revisionist that in view of the liberty granted by the Hon'ble High Court, this Court shall also go into the correctness and legality of the order dated 21.01.2019 passed by the Ld. ASJ in Appeals upholding the conviction of the Revisionists.
11. The Hon'ble High Court vide order dated 16.02.2022 has not issued any directions to this Court to go into the correctness, legality and propriety of the order dated 21.01.2019 passed by Ld. ASJ in Appellate jurisdiction. The directions issued vide order dated 21.01.2019 are to consider the arguments/contentions of the petitioner on its own merits before finally adjudicating the matter. The present adjudication pertain to revision petitions filed by the Revisionists against the order of sentence dated 22.05.2019 passed by the Ld. MM. Revisional jurisdiction cannot be exercised to set aside an order passed by the Court of concurrent jurisdiction. Section 397 Cr.P.C. provides that while exercising the Revisional jurisdiction, the Court may call for and examine the record of any proceeding before any inferior Criminal Court situate within its local jurisdiction for the purpose of satisfying itself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed. The Court of Ld. ASJ, which passed the order dated 21.01.2019, upholding the convictions of the Revisionists and remanding the matters for reconsideration on quantum of sentence is Court of concurrent jurisdiction and thus this Court cannot go into legality, correctness and propriety of the order dated 21.01.2019 passed Page No. 10 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. by the Ld. ASJ under Appellate Jurisdiction. The principles of judicial discipline and propriety bars any such exercise of power under the Revisional jurisdiction. The arguments/contention raised by the Revisionists that the Court while exercising power of revisions may go into the legality, propriety or correctness of the orders passed by the Court of Concurrent jurisdiction are without merits and are rejected. However, since directions have been issued by the Hon'ble High Court to deal with all the arguments/contentions raised by the Revisionists, the Court deems it necessary to deal with all the arguments/contentions.
12. It has been argued on behalf of the revisionists that order on sentence passed by the Ld. MM amounts to double Jeopardy. Article 20 (2) of the Constitution of India guarantees that a person cannot be sentenced twice for the same offence arising out of the same cause of action i.e. dishonouring of cheque. The Respondent also filed a CS(OS) 3037/2012, wherein a consent decree dated 27.01.2016 was passed by High Court of Delhi. The Revisionist failed to comply with the terms of the consent decreed dated 27.01.2016 and Execution petition No. 69/2016 was filed by the Respondent, wherein the Hon'ble High Court vide order dated 30.11.2018 closed the execution petition and directed that the decree be executed by detention of the judgement debtor no.2 (Revisionist No.2) in civil prison for a period of 3 months. It has been argued that order of sentence dated 22.05.2019 amounts to double jeopardy as the Revisionist No.2 has already undergone civil imprisonment for a period of three months in the Execution No. 69/2016.
13. It has also been argued that with the execution of agreement dated 21.04.2013 before the Hon'ble High Court, the Page No. 11 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. agreement dated 09.08.2013 became null and void and the cheques in question became redundant and without any liability. This argument advanced on behalf of the Revisionists is negated by the clause 6 of the consent agreement dated 21.04.2013 itself, which shows that it was agreed upon between the parties before the Hon'ble High Court that in case payments undertaken in that agreement were not made, then complainant shall be at liberty to proceed with the criminal cases herein. The Agreement dated 21.04.2013 further stipulated that the complaint cases would be withdrawn by the complainant only on complete payment of Rs.10.4 crores. Clause 6 of the Agreement dated 21.04.2013 is reproduced hereunder:
6.Murli Projects Pvt. Ltd. has instituted 8 (Eight) complaints under Section 138 N.I. Act against the above contemnors before Addl. Chief Metropolitan Magistrate, Kadkardooma in respect of Cheque Nos. 021677, 021678, 021679, 021680, 021681, 021682, 021683 and 021684 issued by the said contemnors. The Ld. Court has issued summons in the said 138 N.I. Cases. However, in view of the above settlement, till 31.7.2013, Murli Projects Pvt. Ltd. shall ensure that no coercive steps are taken in respect of their 138 N.I.A cases. In case the cheque issued for the payment of Rs.5 crores (Rupees five crores) is encashed or payment is made otherwise of Rs.5 crores (Rupees five crores) prior to 31.7.2013 then Murli Projects Pvt. Ltd. shall not take any coercive steps in respect of these cheques till 31.12.2013 and similarly steps will be taken in this regard in respect of the subsequent two cheques dated 30.6.2014 and 30.9.2014. In case any of the 4 payments are not made, then Murli Projects Pvt. Ltd. shall be at liberty to proceed with the said criminal case against the Contemnors and others in accordance with law. In case the payment of Rs.10 crores is received in total as per the above schedule ending on 30.9.2014 then Murli Projects Pvt. Ltd. shall withdraw the above criminal cases instituted against the contemnors.
The Hon'ble High Court vide order dated 27.01.2016 passed in CS(OS) 3037/2012 disposed off and decreed the suit in favour of the plaintiff (complainant) and against the defendants Page No. 12 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. (Revisionists) as per the terms recorded in the consent terms/Agreement dated 21.04.2013 and directed that the decree shall be drawn up in terms of the consent terms/Agreement dated 21.04.2013 and made the following observations:
7. It is however clarified that merely because a money decree is passed in favour of the plaintiff, as per the consent terms/Agreement dated 21.04.2013, that will not mean that the plaintiff is not entitled to continue to pursue remedies that the plaintiff has on account of the violation by the defendant nos. 2 & 3 of undertakings which are given to this Court or the orders/directions which have been issued by the Court but not complied by the defendant no.2.
The aforesaid observation made by the Hon'ble High Court and clause 6 of the agreement dated 21.04.2013 makes it ample clear that the complainant/respondents was at liberty to pursue the criminal complaints in case the revisionists fails to comply with the agreement dated 21.04.2013. Thus, the argument advanced on behalf of the Revisionists that with the execution of agreement dated 21.04.2013 before High Court of Delhi, the agreement dated 09.08.2013 became null and void and the cheques in question also became redundant and without any liability is without merit.
14. The second limb of argument that the order dated 22.05.2019 amounts to double jeopardy as the Revisionist No.2 has already undergone civil imprisonment for a period of three months in the Execution No. 69/2016 is also devoid of merit. The concept of double jeopardy is enshrined in Article 20(2) of the constitution of India and section 300 Cr.P.C. Article 20(2) prohibits a person from being prosecuted and punished for the same offense more than once. This principle of double Page No. 13 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. jeopardy prevents individuals from being subjected to multiple trials or punishments for the same offense. Section 300 Cr.PC also envisages the concept of double jeopardy. The section reads as under:
Section 300: Person once convicted or acquitted not to be tried for the same offence
1. A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-Section (1) of section 221, or for which he might have been convicted under Sub-Section (2) thereof.
2. A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-Section (1) of section 220.
3. A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.
4. A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
5. A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.
6. Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.Page No. 14 of 24
M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
15. Article 20(2) and section 300 Cr.PC protects individuals from being subjected to multiple trials or punishments for the same offense and does not bar simultaneous institution of proceedings under civil and criminal law. Civil imprisonment in execution of a decree cannot be equated to punishment for an offence and therefore the principle of double jeopardy has no applicability in the present case. In complaint under section 138 Negotiable Instrument Act, dishonour of a cheque is a cognizable offence subject to fulfilment of condition precedent as laid down in the proviso appended thereto. The cause of action for institution of the civil suit is grant of loan whereas that of the criminal case was return of a cheque inter alia on the premise that the account of the accused was insufficient to honour it or that it exceeded the amount arranged to be paid from that account by an agreement with the Bank. Both the proceedings may be instituted simultaneously. Hon'ble Supreme Court in Vishnu Dutt Sharma v. Daya Sapra, (2009) 13 SCC 729 held as under:
8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceeding at the same time.
Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-à- vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "preponderance of probability" would serve the purpose for obtaining a decree.
9. Section 138 of the Negotiable Instruments Act provides that dishonour of a cheque subject to fulfilment of condition precedent as laid down in the proviso appended thereto is a cognizable offence.
10. The cause of action for institution of the civil suit was grant of loan whereas that of the criminal case was return of a Page No. 15 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
cheque inter alia on the premise that the account of the accused was insufficient to honour it or that it exceeded the amount arranged to be paid from that account by an agreement with the Bank.
11. Section 138 of the Act contains a non obstante clause. In terms of Section 139 of the Act, a presumption in favour of the holder of the cheque may be raised that he had received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
xxx xxx xxx
28. If judgment of a civil court is not binding on a criminal court, it is incomprehensible that a judgment of a criminal court will be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant in some other provisions of the Act, no other provisions of the Evidence Act or for that matter any other statute had been brought to our notice.
16. The recovery initiated on the basis of a debt and a criminal proceeding initiated under section 138 Negotiable Instrument Act on dishonour of cheque and non-payment of cheque amount may be instituted simultaneously and decision in one is not binding on other. Furthermore even a person can be tried for two distinct offences arising out of same cause of action. In R.P. Mathur Prop. Radhika Leather Fashions v. S.R.P. Industries Ltd. , 2009 SCC OnLine Del 259, Hon'ble High Court held as under:
13. Thus, in the facts of this case two sets of offence have been disclosed categorically and clearly, that is offence of cheating in relation to the complaint subject matter of the CBI investigation and commission of offence under Section 138 of N.I. Act on account of non-payment of the cheque amount within the time prescribed for which the notice was issued to the petitioner by the complainant in accordance with the scheme of the provisions under Section 138 of the N.I. Act. It is not a case of double jeopardy inasmuch as separate Page No. 16 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr.
M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
punishments are provided for the two set of offences, that is for dishonouring of the cheque under Section 138 of the N.I. Act which cannot exonerate the petitioner for having committed other offences under Section 420/477A/120B IPC to have cheated the complainant on the basis of false assurance given by him supported by the bankers etc.
17. The Hon'ble Supreme Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621 held that to attract the principle of Double Jeopardy enshrined under Article 20(2) of the constitution of India and section 300 Cr.PC., the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different and observed as under:
24. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.
In the present case, order dated 27.01.2016 passed in CS(OS) 3037/2012 by the Hon'ble High Court, whereby the suit was disposed off and decreed in favour of the plaintiff (complainant) and against the defendants (Revisionists) as per the terms recorded in the consent terms/Agreement dated 21.04.2013 cannot be deemed to be trial for an offence and order passed in execution cannot be deemed to be conviction of the Page No. 17 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Revisionists for an offence so as to attract the principle of double jeopardy. The contention that since the Revisionist No.1 has been sent to civil prison for three months by the Hon'ble High Court vide order dated 30.11.2018, nothing remains for Ld. MM or this court to proceed further against the petitioner is without merit as the principle of double jeopardy is not attracted in the facts and circumstances of the case.
18. It is pertinent to observe that though principle of double jeopardy is not applicable to the facts of present case, however the Ld. MM has taken into account three months civil imprisonment of Revisionist No.2 in terms of order dated 30.11.2018 passed by the Hon'ble High Court in Execution petition No. 69/2016 and vide order on sentence dated 22.05.2019 reduced the sentence of Revisionist no.2 from 6 months (as per earlier order on sentence all dated 23.04.2018) to 3 months. Relevant portion of the order on sentence dated 22.05.2019 is reproduced hereunder:
Convict No.2 Rajpal Navrang Yadav, convict has spent three months in civil imprisonment in terms of the order passed by the Hon'ble Delhi High Court. Though the sentence was passed in a contempt proceedings, however the litigation before Hon'ble High Court was a recovery suit pertaining to the same loan in discharge of which the cheques in question were issued. Accordingly convict no.2 Rajpal Navrang Yadav is hereby sentenced to simple imprisonment for a period of three months in each case and to pay a fine of Rs. 1.35 Crore in each case and in default of payment of fine to suffer simple imprisonment for a further period of six months. (sentences in all seven cases shall run concurrently).
19. The argument that the Ld. MM vide order on sentence all dated 22.05.2019 enhanced the sentence awarded to the Revisionist No.2 by enhancing the in-default sentence from 3 Page No. 18 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr.
M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. months to 6 months is fallacious as the perusal of the record reveals that even vide earlier order on sentence all dated 23.04.2018 passed by the Ld. ACMM, the default sentence of 6 months were imposed.
20. It has also been argued on behalf of Revisionist that trial court could not award default sentence for non-payment of fine. The law with regard to default sentence for not payment of fine is well settled and the Hon'ble Supreme Court in Kumaran v. State of Kerala, (2017) 7 SCC 471, referred to Vijayan v. Sadanandan and observed as under:
26. At this juncture, it is important to note that in Vijayan v. Sadanandan K. [Vijayan v. Sadanandan K., (2009) 6 SCC 652 : (2009) 3 SCC (Cri) 296] , this Court held :
(SCC p. 659, paras 29-31) "29. To appreciate the said legal position, the provisions of Section 431 are set out hereinbelow:
'431. Money ordered to be paid recoverable as fine.--Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:
Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of Section 421, after the words and figures "under Section 357", the words and figures "or an order for payment of costs under Section 359" had been inserted.' Section 431 makes it clear that any money other than a fine payable on account of an order passed under the Code shall be recoverable as if it were a fine which takes us to Section 64 IPC.
30. Section 64 IPC makes it clear that while imposing a sentence of fine, the court would be competent to include a default sentence to ensure payment of the same. For the sake of reference, Section 64 IPC is set out hereinbelow:
'64. Sentence of imprisonment for non-payment of fine.--In every case of an offence punishable with imprisonment as well Page No. 19 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors.
as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.'
31. The provisions of Sections 357(3) and 431 CrPC, when read with Section 64 IPC, empower the court, while making an order for payment of compensation, to also include a default sentence in case of non-payment of the same."
(emphasis in original) This statement of the law was reiterated in R. Mohan v. A.K. Vijaya Kumar [R. Mohan v. A.K. Vijaya Kumar, (2012) 8 SCC 721 : (2012) 4 SCC (Civ) 585 : (2012) 3 SCC (Cri) 1013] , see paras 26 to 29.
In view of aforesaid legal proposition, the contention that the Ld. MM should not have imposed the default sentence is devoid of merits.
21. It has also been argued that the Ld. Trial Court did not adjust the amount of Rs. 1,92,40,350/- from the amount of fine imposed on the Revisionist No.1 and Revisionist No.2 despite specific direction of the Appellate Court vide order dated 21.01.2019 to take into account, the payments made to the complainant by the Revisionists regarding the same liability, while imposing fine against the convicts. Perusal of the earlier order on sentence shows that a fine of Rs. 1.6 Crores each was imposed upon the Revisionists in the seven complaint cases and a fine of Rs. 10 Lacs per case was imposed upon the Revisionist no.3. After the matter was remanded back to pass a fresh order on sentence by the Ld. Appellate Court vide order dated Page No. 20 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. 21.01.2019, Ld. MM vide order dated 22.05.2019 passed the fresh order on sentence imposing fine of Rs. 1.35 Crores on Revisionist No.2 in each case and a fine of Rs. 10 Lacs on Revisionist No.3. The Respondent/complainant has also filed an affidavit admitting that the Revisionists have made a payment of Rs. 1,91,40,350/- has been paid by the Revisionist till date regarding the same liability, thus it is evident that Ld. trial court while passing the order on sentence dated 22.05.2019 has not taken an amount of Rs. 16,40,350/- into account while imposing fine on the Revisionist No.2 and Revisionist No.3. Thus the order on sentence dated 22.05.2019 is liable to be set aside to that extent. In the order on sentence dated 22.05.2019, Ld. MM has reduced the amount of fine on Revisionists No.2 from 1.6 Crore in each complaint (as per earlier order dated 23.04.2018) to 1.35 Crore in each case, however the amount of fine imposed upon Revisionist No.3 is not changed. In view of the same, a decision has to be taken in respect of orders on sentence, which shall be taken at the end of this judgment, after dealing with plea raised in criminal revisions filed on behalf of the complainant.
Crl. Rev No.180/2019, 181/2019, 182/2019, 183/2019, 184/2019, 185/2019, 186/2019
22. The second set of Revision Petitions bearing Nos. Crl. Rev No.180/2019, 181/2019, 182/2019, 183/2019, 184/2019, 185/2019, 186/2019 has been preferred by the complainant/Revisionist against respective orders on sentence all dated 22.05.2019, passed by trial court in seven separate complaint cases all titled as M/s. Murli Projects Pvt. Ltd. v. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors., bearing CC Page No. 21 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Nos.823/13(New No. 53711/16), 825/13(New No.53694/16), 831/13(New No.53822/16), 832/13(New No.53827), 02/13 (New No.48785/16), 824/13(New No.53693/16) & 03/2013 (New No.50553/16) all under Section 138 Negotiable Instruments Act (hereinafter referred to as the Act), PS Preet Vihar. The Revisionist is aggrieved by the order dated 22.05.2019 as the Ld. MM has reduced the sentence of Revisionist No.2 form 6 months to 3 months and have further passed the order dated 22.05.2019 contrary to the provision of Section 357(3) Cr.PC as no compensation has been awarded to the Revisionists/complainant.
23. It is submitted on behalf of the Revisionists that the Ld. MM has erroneously taken into consideration the three months civil imprisonment undergone by the Revisionist No.2 in terms of order dated 30.11.2018 passed by the Hon'ble High Court in Execution petition No. 69/2016. It has been argued that Ld. trial has failed to consider that object of the Act is to encourage the culture of use of cheques and enhancing the credibility of the instrument. It is argued that no reasons has been mentioned in the order to shown leniency to the Revisionists No.2.
24. The perusal of the order on sentence dated 22.05.2019 shows that the Ld. MM has reduced the sentence of Respondent No.2 taking into consideration the fact that Respondent No.2 has already undergone three months civil imprisonment in terms of order dated 30.11.2018 passed by the Hon'ble High Court in Execution petition No. 69/2016 pertaining to the same loan in discharge of which the cheques in question were issued. It is reiterated that though the principle of double jeopardy is not applicable, however the Ld. MM has rightly taken into account, the period of civil imprisonment already undergone by the Page No. 22 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr. M/s. Murli Projects Pvt. Ltd. Vs. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Respondent No.2, while reducing the sentence of Respondent No.2 and imposing the sentence of 3 months. Further the Ld. MM has also imposed fine on Respondent No.2 and 3 and thus in facts and circumstances of the case, I do not find and illegality, impropriety or irregularity in the order dated 22.05.2019 to the extent that the Respondent no.2 has been directed to undergo simple imprisonment for a period of three months. However I find force in the submission of the Ld. Counsel that the Ld. MM has failed to adhere to the provisions of section 357 Cr.PC and has not directed payment of any compensation to the Revisionist from the amount of fine imposed on the Respondent No.2 and 3, though in the earlier order on sentence dated 23.04.2018, compensation was directed to be paid to the Revisionist out of the fine imposed on Respondent No.2 and Respondent No.3. Thus there is an impropriety in the order dated 22.05.2019 to the extent that no directions for compensation to be paid to the Revisionist out of the fine amount has been passed by the Ld. MM. Thus all the fourteen Revisions petitions are partially allowed and the order on sentence passed by the Ld. MM vide order dated 22.05.2019 is hereby altered and the following sentence is hereby passed against the convicts in CC Nos.823/13(New No. 53711/16), 825/13(New No.53694/16), 831/13(New No.53822/16), 832/13(New No.53827), 02/13 (New No.48785/16), 824/13(New No.53693/16) & 03/2013 (New No.50553/16):
(i) Accordingly convict no.2 Rajpal Navrang Yadav is hereby sentenced to simple imprisonment for a period of 3 months in each case and to pay a fine of 1.35 Crore in each case and in default of payment of fine to suffer Page No. 23 of 24 M/s. Shree Naurang Godavari Entertainment Ltd. & Ors. Vs. The State & Anr.
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simple imprisonment for a further period of six months. (sentences in all seven cases shall run concurrently). Out of the fine of Rs. 1.35 Crores in each complaint case, a sum of Rs. 1,34,75,000/- shall be paid to the complainant and Rs. 25,000/- shall be paid to the State.
(ii) Convict no. 3 Ms.Radha Rajpal Yadav is hereby sentenced to pay fine of Rs. 7,65,665/- to the complainant in each case and in default of payment of fine to suffer simple imprisonment for a period of three months. The amount of fine of Rs. 7,65,665/- in each case shall be paid to the complainant. (sentences in all seven cases shall run concurrently).
(iii) Convict no. 1 Company Shree Navrang Godawari Entertainment Pvt ltd. is not operational and has already been struck off from ROC. Adequate compensation had already been awarded to the complainant to be paid by convict no.2 and convict no.3, therefore convict no.1 company is admonished in all the cases.
25. Accordingly, all fourteen criminal revisions are partially allowed.
26. TCRs be sent back along with common judgment to the trial court forthwith.
27. Revision file be consigned to record room, as per rules. Announced in the open court ALOK Digitally signed by ALOK SHUKLA th on this 29 Day of May, 2024. SHUKLA Date: 2024.05.29 14:54:35 +0530 (ALOK SHUKLA) ASJ-2/Special Judge (NDPS) East District, Karkardooma Court, Delhi/29.05.2024 Page No. 24 of 24